6.  The applicant, allegedly a Sierra Leone national, was born in 1983 and was detained at Safi Barracks at the time of the introduction of the application.
7.  The applicant entered Malta in an irregular manner by boat on 8 April 2011. Upon arrival, he was arrested by the police and presented with a document containing both a Return Decision and a Removal Order in view of his presence in Malta as a prohibited immigrant in terms of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta). He was defined as such owing to his entry into Malta in an irregular manner and in consideration of the fact that he did not have sufficient means to support himself. The Return Decision informed the applicant of the possibility to apply for a period of voluntary departure. The lower half of the same document contained a Removal Order based on the rejection of the applicant’s request for a period of voluntary departure. It noted that the request had not been acceded to for the following reasons: the risk that the applicant might abscond; the fact that his application for legal stay was considered to be manifestly unfounded or fraudulent; and the fact that he was considered to be a threat to public policy, public security or national security (see paragraph 27 below).
8.  In fact, the applicant never actually made a request for a voluntary departure period, since the rejection was, as explained above, automatically presented to him with the information regarding the possibility of making such a request. The applicant was never informed of the considerations leading to this decision or given any opportunity to present information, documentation and/or other evidence in support of a possible request for a voluntary departure period.
9.  The applicant was further informed, through the joint Return Decision and Removal Order, of his right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. No further information was provided on the appeals procedure, including the availability of legal assistance; the latter assertion was denied by the Government.
10.  On the basis of the Return Decision and Removal Order, and in accordance with the Immigration Act, the applicant was detained in Safi Barracks.
11.  On 14 April 2011, whilst in Safi Barracks, the applicant submitted the Preliminary Questionnaire, the first stage of his application for asylum in Malta.
12.  On 31 December 2011 the applicant’s asylum application was rejected by the Office of the Refugee Commissioner, who considered that the claim as presented failed to meet the criteria for recognition of refugee status.
13.  On 24 January 2012 the applicant appealed to the Refugee Appeals Board. The parties presented submissions on 29 March 2012.
14.  On 2 April 2012 the Refugee Appeals Board rejected the applicant’s appeal, thereby definitively closing the asylum procedure almost twelve months after his arrival in Malta.
15.  In the meantime, pending the above asylum proceedings, the applicant lodged an application with the IAB on 28 June 2011 in order to challenge the legality of his detention in terms of the Immigration Act. The application was based on Article 5 § 1 of the Convention and Regulation 11(10) of the Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations (Legal Notice 81 of 2011, hereinafter “LN 81”) (see “Relevant domestic law” below). In his application the applicant argued that the decision to detain him, as well as his ongoing detention, were contrary to the law. With regard to the original decision to detain him, the applicant argued that, contrary to the requirements of Regulation 11(8) of LN 81, when he was presented with the Return Decision and Removal Order no assessment had been made as to the possibility of exploring “other sufficient and less coercive measures”. Furthermore, in deciding to detain him, the responsible authorities had decided a priori and without an individual assessment of his situation that he presented a risk of absconding and that he was avoiding or hindering the return or removal procedure. Moreover, the decision was taken without the applicant having had an opportunity to make a request for voluntary departure. The applicant further argued that his ongoing detention was also contrary to the law because once he had presented his asylum application in April 2011, return procedures could not be commenced or continued in his regard under Regulation 12 of the Procedural Standards in Examining Applications for Refugee Status Regulations (Legal Notice 243 of 2008, hereinafter “LN 243”) (see “Relevant domestic law” below).
16.  On 27 September 2011 the Immigration Police responded to the applicant’s application before the IAB; this was followed by further submissions by the applicant. On 22 November 2011 the IAB issued a decree requesting the parties to submit further information on specific queries raised by it. The applicant made further submissions highlighting the delay that was being created in the proceedings, and final submissions were also made by the Immigration Police.
17.  On 5 July 2012, more than a year after the applicant’s challenge, the IAB rejected his application. It noted that, despite the fact that, according to Regulation 11(1) of LN 81, Part IV of those Regulations did not apply to persons who were apprehended or intercepted by the competent authorities in connection with the irregular crossing by sea or air of the external border of Malta and who did not subsequently obtain an authorisation or a right to stay in Malta, the applicant had obtained the right to stay (“joqgħod”) in Malta on lodging his application for asylum. Indeed it had been correct to rely on Regulation 12(1) of LN 243, which stated that an individual had the right to enter or remain on the island pending a decision on his asylum request. In the present case, that situation had applied to the applicant when he instituted his challenge before the IAB. In the applicant’s case, had the asylum request still been pending, Section IV of LN 81 would in fact have been applicable, in particular in so far as an individual could not be kept in detention unless return proceedings were under way or he or she presented a risk of absconding. However, the situation had changed, given that on 2 April 2012 the applicant’s asylum request had been rejected by a final decision. The latter implied that Section IV of LN 81 was no longer applicable to the applicant and thus the IAB could no longer decide on the request in terms of Regulation 11(8) of LN 81. Moreover, the applicant was not arguing the illegality of his detention on the basis of its length. In any event the IAB was not competent to decide whether there had been a breach of Article 5 of the Convention.
18.  While the above procedures were pending, on 16 August 2011, a riot broke out at Safi Barracks, resulting in a number of detained migrants, police officers and soldiers of the Armed Forces of Malta being injured. That same day, twenty-three migrants were arrested and charged in court in relation to the riot. The applicant was amongst the persons arrested and, together with the others, was accused of a number of offences including damage to private property, use of violence against public officers, refusal to obey lawful orders and breach of public peace and good order. The arrested men, including the applicant, were taken to Corradino Correctional Facility to await the outcome of the criminal proceedings.
19.  The following day, on 17 August 2011, the Court of Magistrates confirmed that the arrest of the migrants, including the applicant, was justified and in accordance with the law. They were remanded in custody.
20.  On 30 January 2012 the Court of Magistrates granted the applicant bail, under the terms of which he was released from Corradino Correctional Facility and returned to Safi Barracks.
21.  The applicant was released from detention in Safi Barracks on 21 March 2013, following 546 days of detention in an immigration context. The criminal proceedings in relation to the riot at Safi Barracks were still pending.
22.  On an unspecified date (around January 2013), in an effort to make arrangements for the deportation of the applicant, the authorities interviewed him in the presence of a representative from the Consulate of the Republic of Sierra Leone. The latter, by a communication of 11 February 2012, informed the Maltese authorities that the applicant did not hail from Sierra Leone and that they could therefore not provide further assistance.